Why international law is Israel's Achilles' heel

FOUR years have passed since the International Court of Justice (ICJ) rendered its advisory opinion on the separation barrier that Israel is building in the Occupied Palestinian Territories (OPT). Fourteen of the 15 Judges ruled against the legality of the wall. It was seen as a milestone decision for the Palestinians.

By Asma Hanif

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Published: Tue 19 Aug 2008, 9:35 PM

Last updated: Sun 5 Apr 2015, 4:12 PM

Yet the wall's construction is pursued in defiance of the world's highest judicial body, Israel's alleged goal being to protect Israeli civilians from terrorism. So continues the construction of settlements in the Palestinian Territories, violating Article 49 of the Fourth Geneva Convention under which an "Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies".

And the list goes on to include a multitude of internationally illegal activities, from house demolition to hostage taking to torture to the use of unconventional weapons — according to Human Rights Watch, Israel dropped 4.6 million submunitions across Southern Lebanon in the 2006 war. Israel's apologists believe the Jewish state is eligible to dispense with international law. Harvard Law Professor Alan Dershowitz, for instance, states that "Israel owes the International Court absolutely no deference. It is under neither a moral nor a legal obligation to give any weight to its predetermined decision." [Jerusalem Post, 11/07/2004]

In his latest book, Preemption: A Knife that Cuts Both Ways, the Felix Frankfurter professor attempts to justify that international law needs being updated because the old rules cannot apply today as the world faces an unprecedented terrorism threat. Therefore, he claims, Israel must be allowed to use preventive force against Iran.

Norman Podhoretz, a leading American Neo-Conservative, and editor-at-large for Commentary magazine, further demonstrates the nature of this "unprecedented threat". "[I]n confronting suicide bombers and political leaders like Iran's president Ahmadinejad who are not restrained by the risk of annihilation," he writes, "we cannot rely on the kind of deterrence (mutual assured destruction, or MAD) that kept both the Soviet and American nuclear arsenals in their silos during the cold war." [World War IV, p.3]

But this rationale is not very tenable. Leaving aside that, as Professor Norman Finkelstein says, it bears similitude to the Nazi ideology according to which "ethical conventions couldn't be applied in the case of 'Jews or Bolsheviks'," and assuming, for argument's sake, that Ahmadinejad is prepared to annihilate the world including himself, the fact of the matter is that Israel's leaders are not less able to provoke a global annihilation.

Former prime minister Golda Meir confessed it. In a filmed interview with the BBC's Alan Hart for Panorama programme (April 1971) when asked: "If ever Israel was in danger of being defeated on the battlefield, would it be prepared to take the whole region and even the whole world down with it?", Golda's answer was: "Yes, that's exactly what I am saying".

The real impetus of Israel in dismissing international law as "old rules" is different from saving humanity from the terrorism monster. Rather, it is an attempt to circumvent a fact that, no doubt, is a bitter pill for Israel to swallow: The ever-widening gap that leaves Israel on one side, and, on the other side, the international community backed by mainstream bodies such as the United Nations, the International Court of Justice and Human Rights organisations. And among the public opinion in Europe and North America — including American Jews — support for Israel is declining as polls show. A recent survey conducted by Germany's TV channel ZDF showed that only 40 per cent of Germans feel a 'special commitment' towards Israel.

Dershowitz speaks of a "widening gulf between Israel's actual record and its perceived record", or, in other words, "The whole world is biased against Israel." It just bears to wonder to what extent Israel's opponents can be dismissed as being on the wrong track. Really, how credible is the claim that former US president Jimmy Carter is anti-Semite?

In order to fill this embarrassing gap, Israel's apologists aspire to submit the law to Israel's policy rather than the (more rational and moral) opposite. As Open Democracy's Neal Ascherson writes, "Once it was supposed that human activities should recognise the law and adapt themselves to it. Dershowitz thinks that the law should adapt itself to human activities." Albeit not all humans' activities — just those of a "unique" tiny minority.

Professor Norman Finkelstein dared to challenge the uniqueness of the Jewish people, and to call for applying equal standards universally — not without a price. Being himself Jewish and the son of Nazi holocaust survivors did not spare him being labeled an 'anti-Semite' or even a 'Holocaust denier'.

In his latest book, Beyond Chutzpah — On the Misuse of Anti-Semitism and the Abuse of History, the American political scientist attempts to "lift the veil of contrived controversy shrouding the Israel-Palestine conflict", one of the main sources of this controversy being the invocation of the "new anti-Semitism" and the "Holocaust". Documenting how little newness there actually is about the "new anti-Semitism", Finkelstein writes, "The consequences of the calculated hysteria of a new anti-Semitism haven't been just to immunise Israel from legitimate criticism. Its overarching purpose ... has been to deflect criticism of an unprecedented assault on international law." [Beyond Chutzpah, p.45]

In this context fits the Nazi holocaust, under which 6 million Jews were exterminated in WW2. In his international bestseller The Holocaust Industry, praised by Raul Hilberg — America's late, leading Holocaust historian — Finkelstein argues that the Jews' suffering under Nazi Germany was exploited by American Jewish organisations for political and economic gains, and has been turned into an ideological weapon to justify their unique rights. The immoral rationale became: "If Jewish suffering was unique, then Israel shouldn't be bund by normal moral standards." [Beyond Chutzpah, p.62]

Asma Hanif is a Brussels-based writer

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